The procedural posture of this matter as of October 7, 1999, is set forth in Dec.
Nos. 29689-B, 29690-B and 29691-B (McLaughlin, 10/99). Procedural matters since
the issuance of that decision
are noted in the following Findings of Fact. By letter to the parties dated December 27,
1999, I noted
"the record . . . is closed effective December 21, 1999."

FINDINGS OF FACT

1. The parties to the consolidated complaints are identified under the
"Appearances"
section set forth above, and incorporated here by reference. Complainant filed the complaint
captioned by the Commission as Case #1, No. 57345, Cw-3669 on March 1, 1999.
Complainant filed
the complaint captioned by the Commission as Case #18, No. 57284, Cw-3668, on February
5, 1999.
Complainant filed the complaint captioned by the Commission as Case 54, No. 57283,
MP-3488 on
February 5, 1999.

2. On October 7, 1999, I issued Dec. Nos. 29689-B, 29690-B and 29691-B.
Included
in that decision was the following Order:

Complainant shall make her complaint in the cases noted above
more definite and certain by filing
with the Commission, on or before November 12, 1999, an amended complaint which
complies with
ERC 12.02(2)(c) by specifying:

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1. A clear and concise
statement of the facts constituting the alleged prohibited practice
or practices, including the time and place of occurrence of particular acts and the
sections of the statute alleged to have been violated.

a. If Complainant uses the
Commission complaint form, the entry at Section C
shall state appropriate reference to specific subsections of Sec. 111.70(3)(a),
(b) or (c), Stats. Reference to statutes outside of Subchapter IV of
Chapter 111, Stats., need not be included.

b. Factual
allegations included in the complaint shall state specific acts by the
Respondents which fall within the one year period preceding February 5,
1999, in Cases 18 and 54, or preceding March 1, 1999, in Case 1.

c. Factual allegations should not
include citation to legal authority or argument.
After Commission receipt of the amended complaint, all parties will be
permitted the opportunity to enter argument.

3. In a letter filed with the Commission on October 14, 1999, the District stated:

Upon reviewing your October 7,1999 Order to Show Cause Why
Complaint
Should Not Be Dismissed with Accompanying Memorandum in the above-referenced
prohibited practice proceeding, my curiosity was piqued by your reference to a packet
of documents evidently filedby Ms. Benedict shortly after the
consolidation of this
proceeding became effective.

At Page 9 of the Order, you make reference
to a flurry of correspondence from Ms. Benedict in
late August, 1999, including her submission of both a "consolidated complaint" and a
"consolidated
brief," the former of which must have been intended to serve as an amended complaint in
this
proceeding. For reasons known only to Ms. Benedict, she did not see fit to furnish copies of
any of
that documentation to me. Perhaps she similarly did not see fit to forward any of this
material to
Attorney Finerty.

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Ex parte communications of
this nature ordinarily would be a matter of grave
concern. I would like to assume that this misconduct is attributable either to
inadvertence on the part of Ms. Benedict or to her ignorance of the standards expected
of all those who practice before the Commission. But in either case, it is only
appropriate that she be admonished to refrain from engaging in such ex parts
communications in the future or risk sanctions.

This serious breach of decorum by Ms.
Benedict notwithstanding, I take some
solace in your assessment that the "consolidated complaint," while voluminous,
"...adds...nothing of substance to the documents filed by Complainant on
June 29,1999," such that the Memorandum Accompanying Order to Show Cause is
strictly based on the documents filed on June 29 (p. 13). Consequently, since I am
hardly in the mood to read yet another rambling, incoherent and irrelevant submission
from Ms. Benedict, I have no interest in seeing any of the "consolidated complaint"
material at this time.

Kindly let me know if I have misconstrued
your intentions with respect to the so-called
"consolidated complaint." Hearing nothing to the contrary, I shall simply await receipt of an
amended
complaint by Ms. Benedict in compliance with the terms of your October 7, 1999 Order to
Show
Cause.

In a letter to the parties dated October 18, 1999, I stated:

I write in response to Mr. Ward's letter dated (sic) October 14,
1999. I apologize for not
supplying Mr. Ward and Mr. Finerty with the "consolidated complaint" documentation. I
include
what I believe is the appropriate material with this letter. I would ask Ms. Benedict to make
sure she
supplies copies of any document she sends me to Mr. Ward and to Mr. Finerty.

Unfortunately, this file has come to me in
varying chunks. Often, I am not in the office when
material relevant to the files is left there. Unfortunately, apparently because of the bulk of
the filings,
the agency has not date stamped all of the material. Thus, I cannot be sure I have supplied
Mr. Ward
and Mr. Finerty with all of the material on file in our office. I have never before handled a
matter in
which I could (or would have to) make that statement.

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Page 5

If either Mr. Ward or Mr. Finerty is concerned that they lack
material I may have,
I can offer you the inspection of our files, or to copy the entire file and mail it to you.
However, my recent order should indicate to all of you that the pleading process has
yet to meaningfully begin. The material I have received to this point does not, in my
opinion, constitute a complaint I can compel an answer to. This may or may not play
a role in your decision to seek copies of any or all matter within the files.

If you have any questions, please advise me.

On October 21, 1999, Complainant filed a cover letter and a motion with the
Commission. She
identified the motion as a "Notice of Motion and Motion of Appellant Sandra Lea Benedict's
Objection To Defendant-Appellee's Motion For Rule 38 Sanctions and Additional Bill of
Costs."
The cover letter was addressed to "Mr. Gino Agnello" as the "Clerk of Courts" for the
United States
Court of Appeals for the Seventh Circuit in Chicago, Illinois. In a letter to the parties dated
October
21, 1999, I stated:

I enclose for Mr. Finerty documents filed by Ms. Benedict with
the Commission on October 21,
1999. Mr. Ward is listed on the final page of these documents as a "cc". Thus, I do not
include a
copy for him.

I stress again to Ms. Benedict that any
document mailed to me in the above-noted matters should
also be mailed to Mr. Finerty and to Mr. Ward.

4. On November 12, 1999, Complainant filed a document she identified as "an
amended
complaint which complies with ERC 12.02(2)(c)". The document includes sections,
numbered
between 1 and 155. This document is referred to below as the Amended Complaint.
Specific
allegations will be referred to by Section number where possible. The Amended Complaint
is
incorporated, by reference, into this finding of fact. Those sections specifying allegations of
the
Municipal Employment Relations Act (MERA), state:

7. By its constructive discharge of Sandra Lea Benedict, the
Eau Claire Public School District
committed a prohibited practice in violation of Sec. 111.70(3)(a)5 and 1 of the
Wisconsin Statutes.

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12. WEAC Labor Union has unlawfully refused to submit
Benedict's previous complaints
and grievances to arbitration which is arbitrary, capricious and in bad faith. As such it
constitutes
interference with Benedict's MERA rights and a prohibited practice violative of Sec.
111.70(3)(b)1
of the Wisconsin Statutes.

The Amended Complaint asserts the applicability of statutes beyond MERA. Those
sections that
expressly refer to dates falling within "the one year period preceding February 5, 1999. . .
or. . .
March 1, 1991" state the following:

4. That WEAC Labor Union has represented a bargaining
unit of teachers at Eau Claire Public
School District. The District and Union are parties to a series of collective bargaining
agreements
including the latest one covering calendar years 1997-1998. The agreement prohibits
discharges of
bargaining unit employees without just cause and contains a multi-step grievance procedure
ending
in final and binding grievance arbitration.

8. That Sandra Lea Benedict filed complaints with ERD
(Equal Rights Division Workforce
Development for the State of Wisconsin and EE OC (Equal Employment Opportunity
Commission)
in April of 1997 claiming constructive discharge violated the just cause requirement of the
1996-97
agreement. Attorney Michael Burke was asked to represent Plaintiff Sandra Lea Benedict at
April
16, 1998 ERD Hearing of which he refused representation. See letter dated April 2, 1998.

45. That Plaintiff Sandra Lea Benedict was denied
representation by Michael Burke,
Attorney for Northwest United Educators, as their grievance representative. See letter dated
April
2, 1998 regarding ERD Hearing on Plaintiff Sandra Lea Benedict's claims for discrimination
and
retaliation by Donna Friedeck for filing previous ERD and EEOC claims as well as filing

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Page 7

complaint to Inspector General's Office, U.S. Department of
Education regarding Title I
Expenditures. These matters have great public interest and need to be presented to
taxpayers.

88. That Plaintiff Beenedict (sic) received letter from NUE
Grievance Attorney Michael
Burke on April 2, 1998 stating the following refusal for Benedict requested representation in
ERD
(Equal Rights Division) Hearing against Eau Claire Public School District.

Dear Ms. Benedict,

This letter will confirm our conversation in
which I indicated that ECAE would not represent you
in your April 16, 1998 ERD Hearing. The reason for this decision is as follows:

The ERD Complaint is not a matter that
arises under the terms of the collective bargaining
agreement. As such, ECAE does not have legal duty to represent you in this matter. While
it is true
that ECAE does, on occasion, represent members in matters outside of the collective
bargaining
agreement, that is only true when there is a strong organizational interest in such
representation. In
this case we have concluded that no such organizational interest exists. We considered the
following
in reaching this conclusion:

1. ECAE
was not involved in the decision to file the April 1997 ERD Complaint. Given
that your request for representation was received on March 30, 1998, it would not
now be appropriate for ECAE to represent you on appeal given our lack of
involvement in the investigatory stage;

2. Our review of the October 27, 1997 Initial Determination ­ No
Probable Cause
indicates the possibility of success on appeal is minimal; and,

3. Your case appears to raise issues that are largely personal and not of
substantial
organizational benefit.

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Page 8

If you have questions regarding this matter,
please contact me at your convenience. . . .

The Amended Complaint asserts the inapplicability of statutes of limitations in a
number of sections,
including the following:

11. That since the STATUTE OF LIMITATIONS has run on
Plaintiff Sandra Lea
Benedict's previous claims, Plaintiff will show in an amended complaint that the new claims
relate
back to the date of the original complaints to the ERD and EEOC.

13. That Plaintiff Sandra Lea Benedict is alleging that an
amendment relates back to the
date of the original pleading if "relation back is permitted by the law that provides the statute
of
limitations applicable to the action."

21. That the DEFENSE OF LACHES
in a suit for specific performance is to be
considered wholly independent of the Statute of Limitations.

22. That LACHES begins to run from
the time Plaintiff Sandra Lea Benedict has the
knowledge that one of her rights has been infringed upon. There are no precise rules
governing its
application and each case is determined upon its own circumstances.

23. That Plaintiff Sandra Lea Benedict
has recently become aware that her rights had been
infringed upon but was totally unaware of WERC complaint process until her recent filing
with
WERC since she is not an Attorney but merely a teacher.

The Amended Complaint concludes with the following remedial requests:

WHEREFORE, in the First Cause of Action, the Plaintiff Sandra
Lea Benedict,
prays for judgment against Defendants Eau Claire Public School District and their
representatives Attorney Joel Aberg and Attorney James Ward as well as any and all
defendants who become "third parties" by supplemental jurisdictional request of
assertion of claims under 28 U.S.C. (sec.) l331 permitting the court to exercise
Supplemental Jurisdiction over Related Claims Pursuant to 28 U.S.C. (sec.) 1367 since
the Defense of Laches in a suit of

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Page 9

Specific performance is to be considered
wholly independent of the Statute of
Limitations, also including but not limited to Judgment against Wisconsin Education
Association Council (WEAC Labor Union) and Eau Claire Association of Educators
(ECAE Local Labor Union) as follows:

A. For damages in an
amount which will be determined at time of trial;

B. For the costs and
disbursements in bringing this action, together with
reasonable attorney's fees and;

C. For such other and
further relief as the Court may deem just and
equitable.

On November 12, 1999, Ms. Benedict filed an amended
complaint with the Commission.
Paragraph 1 c of my October 7, 1999 letter (sic) states that: "(a)fter Commission receipt of
the
amended complaint, all parties will be permitted the opportunity to enter argument."

Please advise me if you have received the November 12, 1999
amended complaint, and how you
would like to enter your argument on whether or not the complaint should be dismissed.

On November 15, 1999, Complainant filed a series of documents with the
Commission. The
documents were copies of documents filed with the Circuit Court for Eau Claire County.
They
include a copy of the Amended Complaint and cover letter filed with the Commission on
November
12, 1999; a two page letter from District counsel to Complainant dated October 29, 1999; a
three
page cover letter dated November 11, 1999, from Complainant to the Eau Claire County
Clerk of
Court; a five page document headed "Principal Defendant Sandra Lea Benedict's Opposition
To
Plaintiff Eau Claire Public School District's Garnishment Complaint"; a nineteen page
document
headed "Defendant Sandra Lea Benedict's Reasons For Granting Petition For Hearing"; and
an eight
page motion "to certify for hearing issues regarding Sanctions and Tort Liability in pending
Case No.
99 TJ 16-A." In a letter dated November 22, 1999, the District noted its intention to file "a
letter
brief" and its position that

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Page 10

"nothing in Ms. Benedict's Amended Complaint has caused the District to revise its
thinking in regard
to the pending motion to dismiss on statute of limitations grounds." In a letter dated
November 29,
1999, WEAC and ECEA stated:

This responds to your letter of November 15, 1999.

1 doubt Ms. Benedict's submission - which amounts to nearly 50
single-spaced
pages of argument, citation to various authorities and commentary on issues far beyond
the jurisdiction of the Commission, was what you had in mind when you asked for a
clear and concise statement of claim from Ms. Benedict. Her response fails to
demonstrate why her complaint should not (sic) dismissed because she did not heed
ample warning and now expects the Commission and the parties to decipher her claims
for her. Her complaint should be dismissed for failure to state a claim within the
jurisdiction of the Commission.

Ms. Benedict is not inexperienced at
complying with procedural rules oradvocating her own case. But her submissions to the Commission are more of an
historical account of prior litigation and recapitulation of claims that have long since
been dismissed. It should be clear that Ms. Benedict has already had more than her day
in court. See Benedict v. Eau Claire PublicSchools, et al.,
Case No. 95-C-0568
(W.D. Wis. 1996), aff'd 139 F.3d 901 (7th Cir. 1998) (unpublished),
cert. denied, 119
S. Ct. 58 (1998); see also Benedict v. Eau Claire Area SchoolDistrict, et al., Case
Nos. 98-C-313-S (W.D. Wis. 1998), Benedict v. Wisconsin EducationAssociation
Council, Case No. 98-C-0877-S (W.D. Wis. 1998) and aff'd Case
Nos. 98-3437 and
99-1010 (7th Cir. 1999), cert. pending; see also Benedict v.
Wisconsin Education
AssociationCouncil, ERD Case Nos. 199803285 and 199800825;
see also Benedict
v. Eau Claire Area SchoolDistrict, Case Nos. 99-CV-101,
99-CV-102 and 99-CV-441
(Eau Claire County Circuit Court). The Commission can rest assured it would not be
depriving Benedict of her only remedial forum should it dismiss these cases.

Benedict's submissions to the Commission amount to imposing
costs on the respondents rather
than advocating a legitimate position. We ask the Commission dismiss the cases against the
Eau
Claire Association of Educators and the Wisconsin Education Association Council without the
need
for any further submissions.

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Page 11

In a letter to the parties dated December 2, 1999, I stated:

Mr. Ward and Mr. Finerty have filed responses to my letter of
November 15, 1999. I write to
advise you that if you wish to file further argument on whether or not the complaint should
be
dismissed, it should be postmarked not later than December 20, 1999.

In a letter dated December 10, 1999, the District stated:

Pursuant to your letter of December 2, 1999
in the above-referenced matter, we
will take this opportunity to present further argument relative to the question of whether
Ms. Benedict's prohibited practice complaint (as amended from time to time,
adnauseum) against the Eau Claire School District should be dismissed on
statute of
limitations grounds or otherwise.

The argument which follows is premised
upon the basic assumption that your
October 7, 1999 Order to Show Cause Why Complaint Should Not Be Dismissed with
Accompanying Memorandum effectively nullified all of the voluminous, often
duplicative, documentation previously filed by Ms. Benedict in this prohibited practice
proceeding. The following excerpt from the Memorandum Accompanying Order To
Show Cause accurately and succinctly summarized the state of the record at the time
the Order was issued:

To this point, Complainant has cited statutes
over which the Commission has no apparent
jurisdiction, has offered more volume than detail in specifying the facts constituting the
alleged
statutory violations and has been less than detailed in specifying the time and place of
occurrence of
particular acts. More significantly, what detail there is regarding dates affords no basis to
conclude
any of the complained of conduct falls within the one year period preceding the filing of the
complaints in Cases 18 and 54 on February 5, 1999. She filed the complaint in Case 1 at a
later date,
which only compounds the arguable untimeliness. (p. 13-14)

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Precisely the same sentiments are reflected in the express terms of
the Order to
Show Cause itself. Throughout the already lengthy course of this proceeding (ten
months and counting), Ms. Benedict has repeatedly been reminded by both the
Examiner and opposing counsel that she must comply with Section ERC 12.02(2)(c),
Wisconsin Administrative Code, by filing "[a] clear and concise statement of the facts
constituting the alleged prohibited practice or practices, including the time and place
of occurrence of particular acts and the sections of the statute alleged to have been
violated thereby." The Order to Show Cause reiterated that requirement along with
related directives to Ms. Benedict as to what she should and should not include in her
amended complaint. . . .

Whether she is acting in good faith, or
whether she is acting in bad faith, the fact
remains that in either case Ms. Benedict has failed to comply with the terms of the
Order to Show Cause . . . And she has failed miserably. We fully concur in Attorney
Finerty's assessment, per his letter of November 29, 1999, that the most recent
documentation filed by Ms. Benedict "...amounts to nearly 50 single-spaced pages of
argument, citation to various authorities and commentary on issues far beyond the
jurisdiction of the Commission." Indeed, if this latest submission by Ms. Benedict
represents even a marginal improvement over her previous submissions, any such
improvement, quite frankly, is not discernable to the trained eye of this observer.

Ms. Benedict's flagrant disregard of the
terms of the Order to Show Cause cannot
be tolerated. No admonitions, no matter how firm or clear, have been heeded by Ms.
Benedict to date. Nor is there reason to believe that Ms. Benedict will heed any future
admonitions from either the Examiner or anyone else. She is incorrigible in every sense
of the word. Rather than enabling Ms. Benedict to perpetuate this debacle any longer,
the time has come for this prohibited practice proceeding to be dismissed, with
prejudice, as a result of Ms. Benedict's continued noncompliance with Section ERC
12.02(2), Wisconsin Administrative Code. Wisconsin Rapids School District,
Dec.
No. 19084-A (Honeyman, 11/81.)

Ms. Benedict's ill-advised "business as
usual" approach also has implications for
purposes of the District's pending motion to dismiss the prohibited practice complaint
against it as time barred under the applicable statute of limitations.

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As initially noted in my letter of March 26,
1999, the fact that "...Ms. Benedict last
worked for the District as a teacher on Friday, March 21, 1997" gives rise to
considerable doubt as to the viability, in reference to the applicable statute of
limitations, "...of any prohibited practices conceivably committed by the District within
the one year period preceding the February 5, 1999 filing date in this matter." My July
15, 1999 letter hopefully served to further underscore the fundamental point "...that
nothing Ms. Benedict has filed to date has bridged the statute of limitations gap." In the
same vein, my letter of August 19, 1999 posited that Ms. Benedict could survive the
District's pending dismissal motion "...only upon clearly articulating at least one
genuine issue of material fact with respect to any alleged act or omission which, subject
to proof, arguably would constitute a prohibited practice committed by the District
within one year of the February 5, 1999 filing date in this proceeding." Consistent with
that line of thought, the Order to Show Cause directed Ms. Benedict to bring forward
factual allegations "...which fall within the one year period preceding February 5,
1999."

No one familiar with Ms. Benedict and her
litigious nature would deny that she has a fertile
imagination. She has constructed in her own mind a vast and nefarious network where her
employer,
her coworkers, her union, her former attorneys along with opposing counsel, plus various
insurance
carriers, are all in complicity in one way or another. Those diverse players, we are told,
have formed
a conspiracy designed to destroy her teaching career and deprive her of compensation to
which she
is rightfully entitled. She blithely contends that they have violated a multitude of state and
federal
laws, including (sec.) 111.70, in furtherance of that conspiracy. Yet, Ms. Benedict still has
not
managed to fabricate so much as a single allegation citing any act or omission on the part of
the
District constituting a prohibited practice committed within one year of the pivotal February
5, 1999
filing date. It seems that there are outer boundaries to even an imagination as fertile as Ms.
Benedict's.

In closing, it is best to speak in plain and
simple terms. Ms. Benedict has had
enough chances. Finally, enough is enough. Beyond Ms. Benedict's noncompliance
with Section ERC 12.02(2), Wisconsin Administrative Code, this prohibited practice
proceeding must now be dismissed as time barred under the applicable one year statute
of limitations as well.

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Page 14

On December 17, 1999, Complainant filed a series of documents roughly five inches
thick. The documents included the cover letter and Amended Complaint originally filed
with the Commission on November 12, 1999; material filed with the Commission on
November 15, 1999; and copies of documents ostensibly filed with various state and
federal courts.

6. None of the allegations included in the Amended Complaint can be read to
allege acts
that in and of themselves constitute prohibited practices which fall within the one year period
prior
to the filing of any of the three consolidated complaints.

CONCLUSIONS OF LAW

1. For the purpose of determining if Complainant, in the three consolidated
complaints,
states claims that can be heard by the Commission, Complainant is a "Municipal employe"
within the
meaning of Sec. 111.70(1)(i), Stats.

2. For the purpose of determining if Complainant, in the three consolidated
complaints,
states claims that can be heard by the Commission, the District is a "Municipal employer"
within the
meaning of Sec. 111.70(1)(j), Stats.

3. For the purpose of determining if Complainant, in the three consolidated
complaints,
states claims that can be heard by the Commission, WEAC and ECEA are a "Labor
organization"
within the meaning of Sec. 111.70(1)(h), Stats.

4. The Commission lacks jurisdiction to determine those allegations contained in
the
Amended Complaint that cite law outside of Subchapter IV of Chapter, 111, Stats.

5. Complainant's right to proceed under MERA, concerning those allegations of
the
Amended Complaint falling within Subchapter IV of Chapter 111, Stats., is barred by
Sec. 111.07(14), Stats., and Sec. 111.70(4)(a), Stats. Dec. No. 29689-C

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Page 15

ORDER

The complaints, as amended, are each dismissed.

Dated at Madison, Wisconsin, this 20th day of January, 2000.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Richard B. McLaughlin, Examiner

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Page 16

EAU CLAIRE ASSOCIATION OF EDUCATORS

WISCONSIN EDUCATION ASSOCIATION COUNCIL
(WEAC)

EAU CLAIRE AREA SCHOOL DISTRICT

MEMORANDUM ACCOMPANYING FINDNINGS
OF FACT,

CONCLUSIONS OF LAW AND
ORDER

BACKGROUND

The Commission consolidated the three complaints underlying this matter in Dec.
Nos. 29689,
29690, 29691 (WERC, 8/99). In Dec. Nos. 29689-B, 29690-B, 29691-B (McLaughlin,
10/99), I
stated the minimum requirements to further proceedings on the consolidated complaints.
Broadly
speaking, the Order to Show Cause required Complainant to specify allegations that fall
within the
Commission's jurisdiction. The Order essentially required Complainant to state timely
violations
falling within MERA. Complainant filed the Amended Complaint on November 12, 1999 to
comply
with the Order. The Amended Complaint is expansive regarding time and law, but, at
Section 7,
asserts District violation of Secs. 111.70(3)(a)1 and 5, Stats., and, at Section 12, asserts
WEAC/ECEA violation of Sec. 111.70(3)(b)1, Stats.

The Governing Law

The Commission "only has those powers which are expressly or impliedly conferred
on it by
statute." Browne v. Milwaukee Bd. of School Directors, 83 Wis.2d 316, 333 (1978). From
this, it follows that a complaint, to be enforceable by the Commission, must state rights
enforceable
through the MERA. Moraine Park Technical College et al., Dec. No. 25747-D (WERC,
1/90).

Sec. 111.07(14), Stats., which is applicable to MERA under Sec. 111.70(4)(a),
Stats.,
governs timeliness issues, and states: "The right of any person to proceed under this section
shall not
extend beyond one year from the date of the specific act or unfair labor practice alleged."
Because
the Amended Complaint refers to events outside of the one year limitations period, its
timeliness is
governed by the principles of Local Lodge No. 1424 v. National Labor Relations Board
(Bryan Mfg. Co.), 362 US 411, 45 LRRM 3212 (1960). In that case, the United States
Supreme
Court posited two situations that pose the relevant considerations here:

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The first is one where occurrences within
the . . . limitations period in and of themselves may
constitute, as a substantive matter, unfair labor practices. There, earlier events may be
utilized to
shed light on the true character of matters occurring within the limitations period; and for
that
purpose Sec. 10(b) ordinarily does not bar such evidentiary use of anterior events.
The second
situation is that where conduct occurring within the limitations period can be charged to be
an unfair
labor practice only through reliance use of the earlier unfair labor practice is not merely
"evidentiary,"
since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to
cloak
with illegality that which was otherwise lawful. And where a complaint based upon that
earlier event
is timebarred, to permit the event itself to be so used in effect results in reviving a legally
defunct
unfair labor practice. 45 LRRM at 3214-3215.

The Commission approved the bryan analysis in CESA No. 4 et. al., Dec. No.
13100-g (WERC,
5/79), and applied it in Dec. No. 25747-D (WERC, 1/90). This analysis, read in light of the
provisions
of Secs. 111.70(4)(a) and 111.07(14), Stats., requires two determinations. The first is to
isolate the
"specific act alleged" to constitute the prohibited practice. The second is to determine
whether that
act "in and of (itself) may constitute, as a substantive matter" a prohibited practice.

Granting the motion to dismiss denies an evidentiary hearing, and this poses issues
implicating
both MERA and Chapter 227, Stats., which governs contested cases such as this. The
Commission
has issued a pre-hearing motion to dismiss, See Local Union No. 849, United Brotherhood of
Carpenters and Joiners of America and Fox River Valley District Council of United
Brotherhood of Carpenters and Joiners of America, Dec. No. 5502 (WERC, 6/60), and has,
with judicial approval, authorized examiners to determine pre-hearing motions to dismiss,
See
County of Waukesha, Dec. No. 24110-A (Honeyman, 10/87), aff'd Dec. No. 24110-A
(WERC,
3/88); and Moraine Park Technical College et. al., Dec. No. 25747-C (McLaughlin, 9/89),
aff'd Dec. No. 25747-D (WERC, 1/90). For judicial approval, see Village of River
Hills, Dec.
No. 24570 (WERC, 6/87), aff'd Dec. No. 87-CV-3897 (Dane County Cir. Ct., 9/87),
aff'd Dec.
No. 87-1812 (ctapp, 3/88). The procedural history of the case is summarized in Village of
River
Hills, Dec. No. 24570-B (Greco, 4/88). Courts have authorized agency dismissal of
contested
cases prior to a hearing, where the case poses no genuine issue of fact or law. Balele v.
Wis.
Personnel Commission, 223 wis.2d 739 (ct. app, 1998).

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A pre-hearing motion to dismiss can be granted only if a complaint fails to raise a
genuine
issue of fact or law. The standard appropriate to determining the merit of a pre-hearing
motion to
dismiss has been stated thus:

Because of the drastic consequences of denying an evidentiary
hearing, on a motion to dismiss
the complaint must be liberally construed in favor of the complainant and the motion should
be
granted only if under no interpretation of the facts alleged would the complainant be entitled
to relief.
Unified School District No. 1 of Racine County, Wisconsin, Dec. No. 15915-B (Hoornstra,
with final authority for WERC, 12/77) at 3.

In determining when the limitations period begins to run, the Commission has
referred to "our
general holdings that the statute of limitations begins to run once a complainant has
knowledge of the
act alleged to violate the Statute." State of Wisconsin, Dec. No. 26676-B at 8 (WERC,
4/91).
However, the Commission has also rejected a complainant's contentions that she was not
obligated
to file her complaint within one year of the act alleged to have occurred in March of 1982
because
she did not discover the allegedly arbitrary nature of that act until 1984, AFSCME, Council
24,
WSEU, Dec. No. 21980-C (WERC, 2/90). The Commission's adoption of a "knew or
reasonably
should have known", Premontre High School, et. al., Dec. No. 27550-B (WERC, 8/93) at 7,
standard is more favorable to the Complainant here, and must be applied to determine if the
complaint
can be dismissed prior to formal hearing.

Application Of The Governing Law To The Amended
Complaint

Application of governing law to the Amended Complaint demands a determination
whether
Complainant has alleged violations enforceable by the Commission under MERA. If she has,
it is then
necessary to determine whether any such allegations can be considered timely under Sec.
111.07(14),
Stats.

Complainant's rights flow from her employment as a municipal employe. Thus,
under no view
of the governing law can the Commission assert jurisdiction over state or federal statutes
beyond
MERA. Conduct that can violate non-MERA statutes can also violate MERA, but this
addresses
allegations of fact, not law. For example, Complainant's contention that WEAC/ECEA
breached its
duty to fairly represent her based on hostility based on her age or

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disability could point to fact potentially relevant to MERA. This relevance turns,
however, on the
existence of fact that can support at least a MERA violation. It fails to grant the
Commission
independent authority to enforce state or federal legislation proscribing discrimination based
on age
or disability. Those sections of the complaint alleging violations of non-MERA statutes, but
failing
to allege specific facts pointing to a MERA violation, must be dismissed on that basis alone.
This
addresses a significant portion of the Amended Complaint, including the following sections:
Sections
24, 136 and 145, which point to various sections of the United States Code; Sections 26, 32
and 41,
which concern the liability of insurance companies; Sections 21, 22, 74, 75, 76, 77, 78, 79,
80, 81,
82, 83, 84, 85, 86, 89, 102, 103, 104, 105, 106, 110, 112, 113, 118, 119, 124, 125, 130,
133, 135,
143, 148, 149, 150 and 155, which concern various common law actions; Sections 90, 91,
92, 93,
94, 95 96, 97, 98, 100, 101, 142 which concern federal antitrust and RICO law; Sections 34
and 35,
which allege specific violations of the Fair Employment Act; Sections 37, 38 and 39, which
allege
District violations of Title I; Sections 141 and 147 which concern Title VII; Section 144,
which
concerns an amalgam of state and federal law not including MERA; and Sections 19, 20, 28,
29, 30,
31, 45, 140, 142 and 147 which allege violations of federal law proscribing discrimination
based on
age and handicap.

The listed sections entirely or in significant part allege violations of law not
enforceable by
the Commission. Some of the sections include factual allegations that could support
violations of
MERA as well as non-MERA law. The purpose of the conclusion stated above is not to
precisely
delineate those portions of the Amended Complaint that stray outside MERA. Such an effort
is, on
the face of the Amended Complaint, doomed to failure. It underscores, however, that those
portions
of the Amended Complaint that seek to invoke Commission jurisdiction over non-MERA
sources of
law must be dismissed.

The analysis thus turns to the MERA based violations asserted in the Amended
Complaint,
and more specifically whether those assertions can be considered timely under
Sec. 111.07(14), Stats.
The Amended Complaint alleges that the District violated the labor agreement and that
WEAC/ECEA
violated its duty to fairly represent Complainant by failing to effectively challenge those
violations.
Complainant filed two of the three complaints on February 5, 1999 and the third on March
1, 1999.
To be timely, Complainant must allege a prohibited practice falling within the one-year
period
preceding these dates.

Isolating the specific prohibited practice alleged by Complainant poses some
difficulty. The
events woven through the Amended Complaint appear to date from an automobile accident
on
September 25, 1986 (Section 27). The Amended Complaint traces a series of events

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constituting the aftermath of that accident. Those events cover "reasonable
accommodations,
transfers, inservice education and programs, wrongful discharge and constructive discharge"
(Section
25). More specifically, the Amended Complaint alleges Complainant was transferred from a
one-story school, then denied the reasonable accommodation of teaching in a one-story
school for the
1990-91 school year (Section 42). She was involuntarily transferred to a multi-level building
for the
1991-92 school year, and again denied a requested transfer to a one-level building (Section
57). This
refusal to reasonably accommodate her continued through the 1992-93 school year (Section
58). The
refusal to accommodate also extended to a District refusal to provide an "ergonomic
armchair"
(Sections 60-65). Involuntary transfers continued through the 1994-95 school year (Sections
67-71;
107-109). At the commencement of the 1995-96 school year, Complainant was embarrassed
in front
of teaching staff during an inservice session (Sections 116-118), and was again subjected to
an
involuntary transfer (Section 128). Ultimately, Complainant was "on March 21, 1997 . . .
constructively discharged from her employment without just cause and in violation of the
1996-97
agreement" (Section 6).

The constructive discharge is the focal point of the allegations of the Amended
Complaint.
The failures to accommodate and series of transfers preceding it are inevitably more dated
than the
discharge. Section 7 of the Amended Complaint underscores that this act is the specific
prohibited
practice challenged in the complaint. That action, on the face of the Amended Complaint,
falls
outside of the one-year period preceding either February 5 or March 1, 1999.

The Amended Complaint asserts that the Commission should assert jurisdiction over
the
complaint without regard to its apparent untimeliness (Sections 11, 13, 21, 22 and 23) and
also points
to WEAC/ECEA conduct falling after the discharge (Sections 4, 8, 36, 45 and 88). None of
these
allegations establish conduct that in and of itself constitutes a prohibited practice. Section 4
points
out no more than that the District and WEAC/ECEA are parties to a labor agreement
covering the
1997-98 school year. This has no meaning as a prohibited practice outside of a continuation
of the
just cause provision Complainant wishes to apply to the 1997 discharge. The remaining
sections
point out that WEAC/ECEA expressly declined, in April of 1998, to represent Complainant
in an
action initiated by her before the Equal Rights Division of the Department of Workforce
Development. This denial, however, has no meaning as a prohibited practice outside of the
allegedly
discriminatory acts that culminated in the discharge of March, 1997. None of these
allegations can
survive the Bryan analysis. The April, 1998 denial of representation has no meaning as a
prohibited
practice independent of the events culminating in Complainant's constructive discharge.

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The Complainant's contention that the Commission can ignore this apparent
untimeliness
cannot be accepted. Sections 11, 13, 21 and 22 may fall within a court's jurisdiction, but
afford no
guidance here, since the Commission can act only to the extent of its statutory authority.
Section 23
asserts that Complainant was unaware of the prohibited practice procedure until after the
one-year
time limit. This cannot, however, fall within those Commission cases dating the specific
prohibited
practice alleged from the time a complainant knew or should have known of the violation.
On its
face, the Amended Complaint notes that Complainant was involved in litigation over the
events
complained of here, well before 1998 (Sections 8, 11, 13 and 88). Complainant knew of and
challenged the conduct at issue here well before the one-year limitations period mandated by
Sec.
111.07(14), Stats.

In sum, a significant portion of the Amended Complaint challenges conduct falling
outside the
scope of MERA. Those portions must be dismissed because the Commission has no
jurisdiction to
hear them. To the extent the Amended Complaint challenges conduct within the scope of
MERA,
Commission consideration of the conduct is barred by Sec. 111.07(14), Stats. Accordingly,
each of
the consolidated complaints, as amended, has been dismissed.